Heverle v. Rasmussen
| Decision Date | 14 October 1931 |
| Citation | 137 So. 259,103 Fla. 76 |
| Parties | HEVERLE v. RASMUSSEN et al. |
| Court | Florida Supreme Court |
Suit by Richard L. Heverle against E. L. Rasmussen and others. From an adverse order, complainant appeals.
Reversed and remanded.
Syllabus by the Court.
'Interlocutory' orders or decrees are defined as such as are given in the middle of a cause upon some plea, proceeding, or default which is only intermediate and does not finally determine or complete the suit.
A decree is final which decides the right to the property in contest and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant and the complainant is entitled to have such decree carried immediately into execution, but where anything remains to be done which may be the subject of later exception or appeal so that the whole matter in controversy is not disposed of the decree is not regarded as final.
Where a decree merely directs accountings and inquiries in order to enable the court to determine what is to be done in finally disposing of the controversy, the complainant has a right to dismiss his bill with prejudice, even after an interlocutory order has been entered finding the equities in favor of the complainant and directing accountings and inquiries in order to enable the court to determine what is finally to be done in order to settle the whole controversy between the parties.
It is error for the chancellor to deny the complainant the right to dismiss his bill with prejudice, even after the entry of an interlocutory order finding the equities in favor of the complainant and directing the taking of an account, count where it appears that considering the object of the suit and the prayer of the bill, the order finding the equities in favor of the complainant and directing the taking of an account does not finally dispose of the whole controversy between the parties. Appeal from Circuit Court, Charlotte County; George W. Whitehurst, judge.
Henderson & Franklin, of Ft. Myers, for appellant.
J. Bowers Campbell, of Ft. Myers, for appellees.
In the court below appellant filed a bill of complaint against the appellees seeking to enforce a trust in real estate and asking for an accounting. The bill prays for an injunction and discovery and for such other and further relief as might be appropriate. The defendants answered the bill and denied the substance of its allegations. The suit was begun on July 6, 1925, and on March 4, 1929, the court entered an order finding that the equities of the cause were with the complainant and decreeing that the defendants Hazel Rasmussen and E. L. Rasmussen held in trust for the complainants the property described in the bill of complaint which formed the subject of the suit. The decree ordered an accounting to be taken between complainant and defendants with reference to the property and referred the cause to a master for that purpose. On January 14, 1931, appellant filed his petition and motion to dismiss the suit. No request was contained that the dismissal be without prejudice, but on the contrary it was specially requested that the cause be dismissed with prejudice. The chancellor denied the motion to dismiss and the complainant has appealed from that order.
The first question raised on the appeal is whether or not the order of the court finding the equities to be with the complainant, and decreeing that the property involved was held in trust by the defendant for the complainant, is an interlocutory or a final decree. In the case of Hirsch . v Scott, 87 Fla. 336, 100 So. 157, interlocutory orders or decrees were defined as such as are given in the middle of a cause, upon some plea, proceeding, or default which is only intermediate, and does not finally determine or complete the suit. On the other hand, when a decree decides the right to the property in contest and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, it is a final decree, but where anything remains to be done which may be the subject of later exception or appeal the decree is not regarded as final. Bellamy v. Bellamy, 4 Fla. 242; Perkins v. Fourniquet, 6 How. 206, 12 L.Ed. 406; Pulliam V. Christian, 6 How. 212, 12 L.Ed. 408. A decree is not a final decree which does not dispose of the whole matter in controversy between the parties. Barnard v. Gibson, 7 How. 650, 12 L.Ed. 857.
Considering the decree as interlocutory only, we would be required to decide whether or not the complainant was entitled as of right to dismiss his bill with prejudice, thus ending the litigation by a final decree which would be res adjudicata as to the matter in controversy and leave the defendants with the land concerning which the declaration of trust was sought. No affirmative relief was prayed in the answer which concluded with the formal prayer that the defendants be 'hence dismissed.' Because of this the complainant claims that as a matter of right he was entitled to dismiss his bill with prejudice, even after an interlocutory order finding the equities in his favor.
In Daniel's Chancery Plead. & Prac. (5th Ed.) p. 757, it is held that where a decree merely directs accountings and inquiries in order to enable the court to determine what is to be done, plaintiff may dismiss his own bill. In U.S Harness Co. v. Graham (D. c.) 288 F. 929, it seems to have been recognized that under the federal equity practice ...
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